MATKEVICH v NEW SOUTH WALES TECHNICAL AND FURTHER EDUCATION COMMISSION [No 2] SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KirBy P, POWELL and COLE JJA 17 November 1995, 17 November 1995 [1995] NSWCA 279 PRACTICE AND PROCEDURE — appeal — from GREAT Tribunal — preliminary decision — question of law — whether appeal premature — whether should follow hearing on merits — held (by maj): Appeal not premature — entitlement in law to appeal from interlocutory decisions — no requirement of leave — convenience and legal entitlement require hearing of appeal. Clisdell vy Commissioner of Police (1982) 31 NSWLR 555 (CA), appld; Ramton v Cassin, CA(NSW), unrpd 25.9.95 [1995] NSWJB 136, distd. INDUSTRIAL LAW - GREAT Tribunal interlocutory decision - appeal to Court of Appeal whether should be postponed pendiNg hearing on merits - whether adjournment would deprive appellant of appeal points - held (by maj): Adjournment refused. WORDS AND PHRASES - "decision on a question of law" PRACTICE AND PROCEDURE - appeal - Court of Appeal - appeal from Government and Related Employees' Appeal Tribunal - interlocutory decision of Tribunal - appeal on question of law - whether lies - whether premature - whether should be adjourned until after determination by Tribunal of appeal on the merits - held: (Kirby P and Powell JA; Cole JA dissenting) As the appeal lay by law, without leave, from an interlocutory decision of the Government and Related Employees' Appeal Tribunal, the Court of Appeal should hear the appeal and not adjourn the hearing until after a hearing of the appeal to the Tribunal on the merits. Clisdell v Commissioner of Police (1993) 31 NSWLR 555 (CA), applied; Smith v Allen (1993) 31 NSWLR 52 (CA), considered; Ramton v Cassin, CA(NSW), unreported, 25 September 1995; [1995] NSWJB 136, distinguished. INDUSTRIAL LAW - Government and Related Employees' Appeal Tribunal- appeal to Court of Appeal - question of law - alleged application of incorrect test to decision to set aside primary determination of dismissal of employee as void whether appeal to Court of Appeal lies - whether appeal premature - whether hearing of appeal should be adjourned until after hearing on the merits of appeal to Tribunal - held: (Kirby P and Powell JA; Cole JA dissenting) The appeal should be heard and not adjourned. Ramton v Cassin, CA(NSW), unreported, 25 September 1995; [1995] NSWJB 136 distinguished; Clisdell v Commissioner of Police (1982) 31 NSWLR 555 (CA), applied; Ultra Tune (Aust) Pty Ltd and Anor v Swann and Ors (1984) 8 IR 122 (NSWCA) considered. WORDS AND PHRASES - "decision on a question of law" Government and Related Employees' Appeal Tribunal Act 1980, s54. Kirby P Today the Court has listed before it an appeal against a decision of law of the Government and Related Employees Appeal Tribunal (the Tribunal). NATURE OF THE APPEAL FROM GREAT At the beginning of the proceedings a preliminary question was raised by a member of the Court (Cole JA) concerning whether, in effect, the appeal was premature. 2 UNREPORTED JUDGMENTS The facts of the case can be stated briefly for present purposes. Mr Leonard Matkevich (the appellant) was, until his dismissal on 10 August 1994, senior head teacher of Fine Arts at the East Sydney College of TAFE. The TAFE Commission is the respondent to the appeal. The appellant was found guilty by Mr Mangan, a prescribed officer of TAFE, upon six out of seven charges of misconduct, negligence and improper conduct. The complaints arose out of assertions made in November 1992 against him by a number of Mr Matkevich's students. Mr Matkevich complains about various aspects of the procedures which were followed, after the complaints were received by TAFE. It is not necessary at this stage to set out in detail the appellant's objections. However, they include objections to the failure to conduct an enquiry which would have afforded the appellant an opportunity to confront and cross-examine witnesses giving oral evidence. They also include an allegation of an unduly close and inappropriate association between the prescribed officer and the officer of TAFE who was appointed to assist the prescribed officer in the proceedings, the prescribed officer himself not being legally qualified. There is also a complaint about a procedure which was observed in the final stages of the primary hearing. By that procedure, submissions were presented to the prescribed officer, both by the employer and by Mr Matkevich. No opportunity was given, relevantly, to Mr Matkevich to see. address his mind to, and make submissions upon, the submissions received by the prescribed officer from the employer concerning the penalty which was proper to the conduct found to be proved. As is now known, the employer sought a penalty of dismissal. The matter was therefore a serious onw. THE DECISION OF GREAT Against these procedural defects Mr Matkevich ultimately complained by way of an appeal to the Tribunal. That appeal was heard on 25 October 1994 and on 17 November 1994. On 10 January 1995, the Tribunal found that the last mentioned complaint did involve a failure on the part of the prescribed officer to observe the requirements of procedural fairness. It further held, that notwithstanding, that the decision of the employer was not void. It concluded that it would proceed to hear the appeal on its merits. The Tribunal ordered the Registrar of the Tribunal to list the appeal for mention for the purposes of its being set down for hearing on the merits at the earliest convenient date. It is against that determination that Mr Matkevich has appealed to this Court. The appeal is before us for the second time because, by reason of a slip, Mr Matkevich's notice of appeal was not served on the respondent until one day outside the general statutory prescription. The employer therefore moved the Court to dismiss the appeal as incompetent, being out of time. The Court, differently constituted, by a majority (myself dissenting) rejected the employer's preliminary objection. It ordered that the proceedings continue to be heard on the merits of the appeal. See Matkevich v NSW Technical and Further Education Commission [No 1] (1995) 36 NSWLR 718 (CA). This appeal has, therefore, been listed before the Court today for hearing. I assume that some measure of expedition has been given because, otherwise, in the ordinary course, the appeal would not have been heard for a considerable time. It would be natural and proper to give expedition to a case such as this. Appearing before the Court are senior and junior counsel for the appellant and senior and junior counsel for the respondent. The parties and other persons who are interested in the case are also in court. They are all here to see the case completed. However, unexpectedly, they were confronted at the beginning of the WAVTKEVICH v NEW SOUTH WALES TECHNICAL AND FURTHER EDUCATION COMMISSION [No 2] (Kirby P) hearing with the suggestion that the appeal was premature, that the matter should go back to the Tribunal, that the hearing should be had on the merits before the Tribunal and that this Court should adjourn the appeal, at least until after the Tribunal had concluded the proposed hearing on the merits. That course would clearly relieve the Court at this stage from having to consider the appeal invoking its jurisdiction. The merits hearing before the Tribunal might produce satisfaction for the appellant. If he were to succeed on the merits, such a decision could remove the necessity of the appeal altogether. Alternatively, it might resolve the dispute between the appellant and employer in some different way, so that this Court would not troubled. There is, of course, a superficial merit in the suggestion that the appeal is premature. However, there are countervailing arguments. In the end, those countervailing arguments persuade me that the Court should proceed to hear the appeal on the merits. Out of deference to the detailed and vigorous way in which the issue has been fought, I will indicate my reasons. THE APPEAL SHOULD BE HEARD AND NOT ADJOURNED My reasons are these: (1) The appellant has, by s54 of the Government and Related Employees Appeal Tribunal Act 1980, (the Act) a right of appeal "against any decision of the Tribunal on a question of law". The last mentioned phrase has been the subject of a number of decisions by this Court in which its meaning has been elucidated. The question came before the Court in Metropolitan Water Sewerage and Drainage Board v Histon (1982) 2 NSWLR 720 (CA) and more recently in Clisdell v Commissioner of Police (1993) 31 NSWLR 555 (CA). In the last mentioned case, a point was taken following the decision of the Federal Court of Australia in Director General of Social Services v Chaney (1980) 47 FLR 80; 31 ALR 571, an appeal akin to that now before this Court. It was argued that an appeal against a preliminary, or interlocutory, decision was not one within the section and would be incompetent for that reason. That argument was rejected in Clisdell by Sheller JA at 559. In the course of his reasons, his Honour said: "This Court held, in Metropolitan Water Sewerage and Drainage Board v Histon (1982) 2 NSWLR 720, that there is a decision on a question of law within s54 and s55 of the GREAT Act whenever the Tribunal decides a question of law. The right of appeal is not limited to the final dispositive resolution of the appeal before the Tribunal." I did not take it ultimately to be contested that a right of appeal exists in this case. What was suggested was that the right is being prematurely exercised. In considering prematurity it is appropriate for the appellate court to take into account, in this State and in respect of this Tribunal, that Parliament has provided for appeals to the Court generally on a question of law. So long as a question of law can be established, the right to appeal exists by law. The Court must be chary about narrowing the right which Parliament has afforded. It should be especially careful about doing so in a case such as the present because the right is a beneficial right of Crown employment. That right should not be narrowly construed. It can be assumed that the right was, before its enactment by Parliament. the subject of consideration in the industrial relations setting; 2. Unlike other interlocutory or preliminary decisions no provision for leave to appeal is afforded in this case as a barrier against the exercise of the statutory right of appeal. The general provisions of the Supreme Court Act, 1970, s101, do not apply. No requirement for leave is provided by the express enactment of s54, 4 UNREPORTED JUDGMENTS or any other provision, of the Act. Accordingly, it is not necessary for the appellant to secure leave so long as he can show a decision on a question of law. It would be a mistaken exercise of the Court's power to adjourn proceedings to approach the matter as if leave or its equivalent were, by law, required; 3. In Ramton v Cassin, unreported Court of Appeal (NSW), 25 September 1995; [1995] NSWJB 136 this Court, in the context of District Court appeals, established, by majority, an approach to summonses for leave to appeal which are considered to be premature. The approach in that case has been applied by the Court in its motion list since Ramton v Cassin was decided. However. I do not take that decision to lay down an absolute ruling which is binding on the Court in the present instance. It could scarcely do so because, where Parliament has provided the donee of statutory power with a discretion or power, that discretion or power must be exercised as Parliament would have intendeds ie in ways appropriate to the particular circumstances of the case; 4. The point which is now raised was not raised by the respondent prior to the hearing before the Court today: (a) It was not raised in the preliminary proceedings in which the respondent moved for the dismissal of the appeal on the footing that the appeal was incompetent. That would have been the occasion for the resisting employer to have advanced an alternative argument, namely, that the appeal was premature. Such an argument might have been expected if it had been seriously contended, for it would have provided an alternative basis upon which the Court could have provided relief to the respondent. The argument was not advanced; and (b) In the submissions on the merits of the case which were received in writing and which are most helpful, the respondent did not raise the preliminary objection which has now been raised by a member of the Court. The respondent came here today to argue the merits of the appeal. It should ordinarily be left to parties, being well represented and well advised, to consider for themselves whether or not proceedings are premature, as is now suggested. It can usually be left to them to raise that point, unless for some reason it appears to the Court that they have overlooked it; 5. The suggestion was made that the hearing of the case before the Tribunal would afford the appellant the hearing on the merits which he really seeks. Senior counsel for the appellant at no stage suggested otherwise than that his client would receive a hearing on the merits before the Tribunal To this extent the argument that the matter could proceed before the Tribunal before coming to this Court has some similarity to the decision of this Court in Ex Parte Corbishley; Re Locke [1967] 2 NSWR 547 (CA) 551. However, there are important differences: (a) The appellant could not, at least easily, have sought relief prerogative in nature in this Court in this case, as was available to Mr Corbishley. There is an alternative to appeal. Had the appellant approached the Court for prerogative type relief, he would almost certainly have been met with the objection - if not taken by the employer then certainly taken by the Court - that, a statutory appeal being available, he should proceed to the remedy of appeal. That objection would be in line with a series of decisions in the Court including that of Hutley JA in Ultra Tune (Aust) Pty Ltd and Anor v Swann and Ors (1984) 8 IR 122 (NSWCA). That case illustrates a trend of authority which is frequently applied in respect of industrial proceedings. See eg Ballam v Higgins, Court of Appeal (NSW) unreported, 17 November 1986; [1986] NSWJB 244. I see no reason why it would not have been applied in this case. Accordingly, an appeal was the appropriate vehicle for the appellant to raise the objection of law which he has WAVTKEVICH v NEW SOUTH WALES TECHNICAL AND FURTHER EDUCATION COMMISSION [No 2] (Powell JA) to the lawfulness of the conduct of the proceedings by the employer. There is no doubt that a failure to provide a person, who is entitled to it, with procedural fairness amounts to an error of law. See eg Yates Property Corporation Pty Ltd (In Liquidation) v Darling Harbour Authority (1991) 24 NSWLR 156 (CA), 186; (b) The appellant contends that he is entitled to have a decision which is lawful in the first instance and not one vitiated by serious unlawfulness deriving from what he contends to have been a departure from the principles of natural justice or procedural fairness. There is some support for his claim to the entitlement to a primary decision which is lawful, whatever may be the appellant's other appellate rights. See eg Smith v Allen (1993) 31 NSWLR 52 (CA), 60; and (c) There are also practical considerations which concern the appellant and which sustain his entitlement to have his appeal now passed upon by this Court. If he is required to proceed only to the hearing of his appeal in the Tribunal, which is what would occur if this Court provided no relief, he would be required, as appellant, to caw the burden of establishing his case. This would not be the position in a primary determination by the employer. There the employer carries the burden of proof to justify a dismissal. The appellant would also lose his entitlement to enjoy an appeal on the merits which lies to the Tribunal. His only "appeal" then would be a further appeal to this Court. But that would be limited to a question of law. It is a serious matter to deprive a person of a general right of appeal, by way of a hearing on the merits. This is a consideration relevant to what the Court should now do. The foregoing, in particular the fact that the objection was not earlier taken by the respondent and the fact that the parties are here today ready and able to argue the appeal on its merits, suggest to me that the Court should take advantage of the preliminary decision which the Tribunal has made. The appeal appears, subject to any further argument, clearly to challenge a decision of the Tribunal on a question of law. It is, therefore, one which is rightly before this Court. We should proceed to hear and decide it. To adjourn the proceedings would, in my respectful view, be a misuse of the Court's discretion and power to adjourn proceedings. It would be, in effect if not in law, to foreclose some of the arguments which the appellant wishes to place before the Court for its decision, as he is by law entitled. I should finally say that when the preliminary point was raised by the Court, it was embraced with belated enthusiasm by the respondent. Notwithstanding this delayed conversion to the point, it does not, on balance, persuade me that the matter should be adjourned. We should proceed to hear the appeal on its merits. It may succeed. Or it may fail. But it should be heard. Powell JA The decisions of this Court in Metropolitan Water Sewerage and Drainage Board v Histon ((1982) 2 NSWLR 721) and in Clisdell v Commissioner of Police ((1993) 31 NSWLR 555) make it clear that, notwithstanding that ie decision which the Senior Chairman of the Tribunal has taken is an interlocutory decision, the appellant has a right of appeal. Although it seems to me that in many, if not most, such cases the exercise of that right will produce an unsatisfactory situation, in the present case, after much consideration, it seems to me that there is a very real question which needs to be decided and which may significantly affect the legal rights of the appellant. That question, as it seems to me, is whether or not, in the exercise of what is said now to be the undoubted jurisdiction of the Tribunal to determine whether or not an administrative decision was lawful. (See Smith v Allen (1993) 31 NSWLR 52) it is nonetheless open to the Tribunal, having found that there was a flaw in the 6 UNREPORTED JUDGMENTS procedure adopted at an enquiry, to decline to make the declaration sought. If that question be decided in favour of the appellant then, as the President has pointed out, the appellant would have the right to have the matter re-heard at first instance and, then. depending on the result of that re-hearing at first instance, have the right of a further appeal to the Tribunal. Since the appellant's legal rights may be affected in the way I have just suggested, it seems to me, whatever might be one's reaction in another case, this case is one in which we should proceed to determine the question. Cole JA I disagree. In the interests of efficiency and saving of time and costs I shall give my reasons with my judgment. (The following was delivered as part of the final judgment) For reasons delivered on 17 November 1995 Kirby P and Powell JA were of the view that this Court should hear this appeal when it was called on for hearing. I was of the view that we should. I then indicated I would give my reasons for that view in this judgment. The appellant wants an independent hearing on the merits. GREAT have directed that he have one before it. GREAT has upheld his claim that, in some respects, he has been denied procedural fairness and that procedural unfairness can be overcome by a hearing on the merits which it has ordered. Once the hearing on the merits has occurred the appellant will either have been found guilty or acquitted. If he is acquitted no questions of appeal from GREAT's findings that any procedural fairness can be cured by a hearing on the merits would arise for consideration by the Court. If he is convicted, he has rights of appeal to this Court on questions of law. If GREAT was legally in error in determining that prior procedural unfairness could be cured by a hearing on the merits, any conviction after a hearing on the merits would necessarily be quashed. Thus the conducting of a hearing on the merits before the hearing of this appeal would deprive the appellant of no rights at all: it simply defers the timing of the hearing of any appeal, which may become completely unnecessary if the appellant is acquitted, as he stoutly maintains will result from a hearing on the merits. No question of leave to appeal or denial of rights of appeal arises. The only question which arises is whether this Court, in its discretion, should hear the appeal now or later. This Court frequently complains about its workload. In those circumstances good sense suggests that we should not hear appeals when there are unexhausted procedures which may result in the hearing of an appeal being unnecessary. That was the philosophy behind the decision of the majority in Rampton v Cassin Court of Appeal (NSW) unreported, 25 September 1995. In my opinion that philosophy should prevail in circumstances here it has the prospect of reducing the workload of the Court of Appeal provided parties are not denied appellate rights. Kirby P: The motion for adjournment is dismissed. Motion for adjournment of hearing of appeal dismissed. Representation: Counsel for the Appellant: BW Walker SC/JA Needham Solicitors for the Appellant: MacMahon Drake Balding Counsel for the Respondent: P Menzies QC WAVTKEVICH v NEW SOUTH WALES TECHNICAL AND FURTHER EDUCATION COMMISSION [No 2] (Cole JA) Solicitors for the Respondent: IV Knight, State Crown Solicitor